Definition of Search: A search occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed upon by governmental action. United States v. Jacobsen, 466
U.S. 109, 112 (1984). A search implies an invasion into private or hidden areas, including the
body. Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Definition of Seizure: A person has been "seized" within the meaning of the Fourth
Amendment if, in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544,
554 (1980); Michigan v. Chesternut, 486 U.S. 567 (1988)(no seizure where police in marked
patrol car drive along-side and follow pedestrian).

The Fourth Amendment also protects property interests, even in situations where neither
privacy nor liberty is at stake. Thus in Soldal v. Cook Co., 113 S. Ct. 538 (1992), the Court held
that the police action of physically tearing a mobile home from its lot and towing it to another
location constituted a "seizure" of the property within the meaning of the Fourth Amendment.

Definition of Probable Cause: Probable cause is the reasonable belief that a specific crime has
been committed and that the defendant committed the crime. It does not require evidence of
each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable
doubt. Probable cause to issue a search warrant may be described as bits and pieces of
information cobbled together until a picture is formed that leads a reasonable prudent person to
believe a crime has been committed and to believe evidence of the crime may be found on a
particular person or in a place or means of conveyance. State v. Grissom, 251 Kan. 851, 910,
840 P.2d 1142 (1992).

I.Relevant Constitutional Provisions

AMENDMENT IV

The right of the people to be secure in their persons, house, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury. . . nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty or property, without due process of law.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

AMENDMENT XIV

....nor shall any state deprive any person of life, liberty, or property, without due process of
law;...

KANSAS CONSTITUTION BILL OF RIGHTS SECTION 15

“The right of the people to be secure in their person and property against unreasonable
searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause,
supported by oath or affirmation, particularly describing the place to be searched and the persons
or property to be seized."

II.The Fourth Amendment Flow Chart

I.IS IT GOVERNMENTAL CONDUCT?

II.DOES THE DEFENDANT HAVE A LEGITIMATE (SUBJECTIVE)
EXPECTATION OF PRIVACY?

“The Fourth Amendment proscribes only governmental action; it is wholly inapplicable
to a search or seizure by a private individual not acting as an agent of the government or with the
participation or knowledge of any governmental official.” Burdeau v. McDowell, 256 U.S. 465
(1921); State v. Miesbauer, 232 Kan. 291, 293, 654 P.2d 934 (1982).

2.Silver platter test

The extent of the involvement is the crucial element. If the private person's involvement
is too great, their role may be reduced to that of an agent of the government. State v. Bohannon,
3 Kan. App.2d 448, 452, 596 P.2d 190, 194 (1979). Factors: (1) whether the government knew
and acquiesced in the intrusive conduct; and (2) whether the party performing the search
intended to assist law enforcement efforts or to further his own ends. United States v. Lovell,
876 F.2d 787, (10th Cir. 1989); State v. Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988).

a.These inquiries are viewed in light of all the facts and circumstances of the case.
Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

Police can go no farther than the private citizen did. Legality of government intrusion
must be tested by the degree to which police exceeded the scope of the private search. United
States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998).

B.Does the Defendant Have a Legitimate (Subjective) Expectation of
Privacy?

In order for a Fourth Amendment search or seizure to occur, the defendant must have
taken some action to shield his activities from prying eyes or he must have some expectation that
he will be able to move about unmolested by any government interference. For example, the
defendant may have conducted his criminal activities inside his own house with the shades
drawn and thus outside the view of the public (and law enforcement). By doing so, he has
exhibited a "subjective" expectation of privacy -- his actions show that he does not want his
activities to be discovered. See State v. Morris, 27 Kan. App. 2d 155, 999 P.2d 283
(2000)(police violated reasonable expectation of privacy by peering through 4"X5" opening in
Venetian blind). See also Ferguson v. City of Charleston, 523 U.S. ___, 121 S.Ct. 1281, 149
L.Ed.2d 205 (2000)(nonconsensual urine testing by state hospital personnel to determine, for law
enforcement, whether expectant mothers were using cocaine violated mother's rights under the
Fourth Amendment).

Conversely, "[w]hat a person knowingly exposes to the public, even in his own home or
office, is not subject to Fourth Amendment protection." Katz v. United States, 389 U.S. 347,
361, (1967).

In America, everyone generally has a right to move freely about and to possess property.
Whenever law enforcement interferes with this right (by stopping a car, stopping a pedestrian,
etc., or by confiscating property), it has "seized" the individual and interfered with his or her
liberty. The legal question in Fourth Amendment cases is whether the government can prove
sufficient legal justification for doing so.

United States v. Rumph, ___ F.3d ___ (6th Cir. No. 97-3135 (1998). Officers conducting zero
tolerance activity in a high crime area saw a large group of people in front of Rumph's house.
Rumph was a known aggravated murderer. When police drove by they saw Rumph walk
quickly away and bend down and put something behind a wheel of car in a driveway. Police
stopped Rumph and were concerned about his clenched left fist. They searched him and found
drugs in his hand. They also found drugs under the car in the driveway. The search was
reasonable. Police were properly concerned for their safety to open his hand, and drugs under
the car were located a short distance from a public sidewalk and visible from the sidewalk.
There was no legitimate expectation of privacy to the items in the driveway.

1.Attempted seizure

No "seizure" occurs when the police attempt to apprehend a person through the show of
authority, but apply no physical force and the person does not submit to the show of authority.
When the defendant threw his drugs during the chase by police the Court held not a seizure prior
to the throwing of the drugs; therefore, drugs not suppressed even if police lacked probable
cause to begin chase. California v. Hodari D, 111 S. Ct. 1547 (1991).

No seizure when the police boarded a bus, engaged the defendant in questioning, and
asked for a consent to search. The Court held that a seizure would not occur if "a reasonable
person would feel free to decline the officers' request or otherwise terminate the encounter."
Florida v. Bostick, 111 S.Ct. 2382 (1991).

2.Officer's subjective considerations

Search and seizure activity that is objectively reasonable is not made unreasonable
merely because of the searching officer's mistaken, subjective beliefs. Maryland v. Macon, 472
U.S. 463, 470-71 (1985).

Key point: Seizure is determined by objective standard not subjective thoughts of officer.

3.Examples of Observations or Seizures that are not Fourth Amendment Searches or Seizures

a.Open Fields

Governmental intrusion on an undeveloped area outside of the curtilage of a dwelling
does not violate the reasonable expectation of privacy of the landowner. Oliver v. United States,
466 U.S. 170 (1984). The question of whether an area is an open field or curtilage turns on: (1)
the proximity of the area to the house; (2) whether the area is within an enclosure surrounding
the house; (3) the nature and use to which the area is put; and (4) any steps taken to protect the
view.

b.Aerial Surveillance

The Supreme Court held that warrantless aerial observation from an airplane lawfully in
navigable airspace of a fenced-in backyard does not constitute a search within the meaning of the
Fourth Amendment. California v. Ciraolo, 476 U.S. 463 (1986). Accord,Florida v. Riley, 488
U.S. 445 (1988) (helicopter surveillance at 500 feet); Dow Chemical Co. v. United States, 476
U.S. 227 (1986)(approving aerial surveillance of Dow Chemical plant.)

c.Trash

Police obtaining trash from bag deposited near the curb for collection is not a “search.”
California v. Greenwood, 486 U.S. 35 (1988).

United States v. Long, 176 F.3d 1304 (10th Cir. 1999). Affirms denial of motion to
suppress where TPD officers retrieved garbage bags from atop a trailer parked near a
garage. Trailer was outside curtilage and closer to public alley than to Long's garage, so
they were abandoned and officers did not violate any expectation of privacy.

State v. Fortune, ___ Kan. App. 2d ___, 20 P.3d 74 (2001). Warrantless search and
seizure of trash in a trash bin adjacent to defendant's trailer and about 8 feet from the
street where it was normally placed for collection did not violate the defendant's Fourth
Amendment rights. There was no reasonable expectation of privacy even if the trash was
within the curtilage of his home. There was no fence, and the trash was easily accessible
to the public and clearly visible from a public thoroughfare.

d.Beepers

1.Government agent's installation, with the owners consent, of an electronic tracking
device inside a container of chemicals did not become a Fourth Amendment search or seizure
when the container was delivered to a purchaser having no knowledge of the beeper's presence.
United States v. Karo, 468 U.S. 705 (1984).

Similarly, a beeper on an auto which allows agents to track the car's movement does not
constitute a search of the car. United States v. Knotts, 462 U.S. 276 (1983).

e.Canine Sniff

By a trained dog of a suitcase to check for narcotics is not a "search" within the meaning
of the Fourth Amendment. United States v. Place, 462 U.S. 696 (1983).

f.Pen Registers

Devices which monitor the telephone numbers called by an individual do not constitute
searches under the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979).

g.Bank Records

Are not protected against governmental seizure because there is no legitimate expectation
of privacy concerning the information kept in bank records. United States v. Miller, 425 U.S.
435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).

h.Personal Characteristics

The sound of a person's voice, the characteristics of her handwriting, and her appearance
are all exposed to the public. Government observations or recording of this information does not
constitute a search.

i.Work place privacy

In O'Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court reaffirmed that an
individual may possess a reasonable expectation of privacy in her place of work. The Court
noted that the question must be resolved on a case-by-case basis. Relevant factors include the
existence of office practices and customs, as well as whether the intrusion is made by a superior
or by the police.

j.VIN

No expectation of privacy infringed when officer moved papers on dash to view the VIN.
New York v. Class, 475 U.S. 106 (1986).

1.Fourth Amendment rights are personal. Thus, unless the individual possesses a personal
interest in the item or place searched or items seized, he cannot claim Fourth Amendment
protection.

a.A passenger in an auto that he neither owned nor leased was held unable to challenge the
government's seizure of a shotgun and shells from the interior of the car. The court held that
passenger had no legitimate expectation of privacy in the places searched (glove compartment
and under the seat); nor did he claim ownership of the goods. Rakas v. Illinois, 439 U.S.. 128
(1979). But see United States v. Walker, ___ F.3d ___ (7th Cir. No. 99-4022, filed 1/17/2001). A
person listed on a car rental agreement as an authorized driver has a protected Fourth
Amendment interest in the vehicle and may challenge a search of the rental vehicle.

b.However; if initial stop of vehicle that the Defendant, even if only a passenger with no
entitlement to the vehicle, is in is stopped and searched illegally, i.e. no probable cause, the
Defendant has standing to move to suppress the search. This is because the Defendant was a
person who was unlawfully stopped and seized. State v. Epperson, 237 Kan. 707, 703 P.2d 761
(1985).

c.Search of an airplane abandoned on an airport runway by the defendant did not invade
any expectation of privacy when the defendant claimed no ownership interest in the airplane.
State v. Gardner, 10 Kan.App.2d 409 (1985). But see Bond v. United States, 529 U.S. 334, 120
S.Ct. 1462, ___ L.Ed.3d ___ (2000). Manipulation of soft-sided luggage in an overhead rack
during a bus station stop amounts to a Fourth Amendment search.The brick of
methamphetamine discovered by customs agents must be suppressed because agents violated
defendant's reasonable expectation of privacy.

d.A "friend" of one Ms. Cox deposited money in her purse; the friend was held not to
possess a reasonable expectation of privacy in the purse sufficient to contest the government's
search of the handbag. The defendant had known the woman for only a few days, and had never
before received permission to place any item in the purse. Even though the defendant owned the
drugs, he could not contest the intrusion into the purse that led to their discovery. Rawlings v.
Kentucky, 448 U.S. 98 (1980).

e.An overnight guest in another person's residence has a reasonable expectation of privacy
sufficient to allow that person to challenge a police entry of the premises. It does not matter
whether the guest does or does not have a key, or whether the owner/possessor has left the guests
in charge. Minnesota v. Olson, 495 U.S. 91 (1990).

State v. Long, ___ Kan. App.2d ___, 993 P.2d 1237 (1999). While overnight guests in someone
else's apartment can object to illegal police entry, Minnesota v. Olson, 495 U.S. 91, 109 L. Ed.
2d 85, 110 S. Ct. 1684 (1990); State v. Jones, 24 Kan. App. 2d 405, 409, 947 P.2d 1030 (1997),
there must be some indicia of lawful presence and a subjective expectation of privacy. Here,
there was an invitation to stay the night that was not initially accepted, then a break-in.
Defendant did not have any personal items in the apartment Therefore, defendant could not
complain of illegal entry by officers who responded to a rape call and that were given a citizen's
tip that the rapist ran towards a certain apartment, and entered upon seeing a damaged apartment
door.

Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Commercial guests in
someone else's apartment cannot claim a legitimate expectation of privacy in the premises
because of the purely commercial nature of the transaction, the relatively short period of time
they were on the premises and the lack of any previous connection between the guests and the
tenant. Because the guests could not claim a legitimate subjective expectation of privacy, the
officer's act of peering into a ground floor apartment window, even if a "search," did not violate
the guests' Fourth Amendment rights.

D.Was a Warrant Issued?

The Warrant requirements are contained in the Fourth Amendment itself. Generally,
there must be probable cause to believe a crime was committed and either the defendant
committed it (for an arrest warrant) or that fruits or evidence of the crime can be found in a
certain place (for a search warrant).

The warrant must be issued by a neutral and detached magistrate (a district judge in
Shawnee County), based on facts submitted to the judge in an affidavit made under penalty of
perjury. The warrant must particularly describe the person to be arrested or the place to be
searched, and must specifically list the items that can be seized. Because most searches by law
enforcement officers are carried out without a warrant, a detailed analysis of the warrant
requirement is beyond the scope of this outline. Be advised, however, that a warrant is a strong
preference, and is "good insurance" against a civil lawsuit against the officer.

The warrant requirement has at least two distinct purposes:

First, the magistrate’s scrutiny is intended to eliminate altogether searches not
based on probable cause. The premise here is that any intrusion in the way of
search or seizure is an evil, so that no intrusion at all is justified without a careful
prior determination of necessity. The second, distinct objective is that those
searches deemed necessary should be as limited as possible. Here, the specific
evil is the 'general warrant' abhorred by the colonists, and the problem is not that
of intrusion per se, but of a general, exploratory rummaging in a person’s
belongings. The warrant accomplishes this second objective by requiring a
‘particular description’ of the things to be seized.

State v. Jones, 27 Kan. App. 2d 476, 5 P.3d 1012 (2000), affirmed ___ Kan. ___, 17 P.3d 359
(2001). Officer did not violate passenger's constitutional rights by asking for ID and running
passenger for warrants during a stop for speeding. Records check was conducted during normal
scope and duration of traffic stop. Distinguishes State v. Damm, 246 Kan. 220, 787 P.2d 1185
(1990), and relies upon Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41
(1997).Supreme court held that once officers acting in good faith discovered a warrant, they
had a right to take him into custody even though he may have been unlawfully detained.

Keep in mind the Fourth Amendment analysis: the first question after was it governmental
conduct is whether a warrant issued. If not, the search or seizure is deemed unreasonable unless
an exception applies. ‟[S]earches conducted outside the judicial process, without prior approval
by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to
a few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357
(1967).

ENTRY INTO HOMES

The law recognizes a person’s home as their castle and gives it special Fourth
Amendment protection. Except in a very, very limited range of circumstances, a warrant
will always be required to enter a person's home.

Generally, there are only three ways you can legally enter someone's home: (1) If you
have a warrant; (2) with probable cause to believe a serious crime has been committed and
exigent circumstances apply; or (3) some other exception (such as consent) applies. Warrantless searches of homes are presumptively unreasonable and violate the Fourth
Amendment.Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1979).

The protection granted to persons inside their homes is illustrated by the requirement that
officers obtain a search warrant to arrest someone in another person's house. Even if there is an
arrest warrant, if a suspect named in the arrest warrant is believed to be within a third party's
premises, absent consent a separate search warrant must also be obtained to search there for the
intended arrestee. Steagald v United States, 451 U.S. 204 (1981); Minnesota v. Olson, 495 U.S.
91; 109 L.Ed. 2d 85 (1990). Conversely, a felony arrest warrant based upon probable cause
carries with it the limited right to enter the home of the subject named in the warrant to effect the
arrest if the officer has a reasonable basis to believe the proposed arrestee is in the residence
when the officers make entry. Payton v. New York, 445 U.S. 573, 602-03 (1980).

Curtilage

A fenced back yard in a suburban setting falls within the curtilage of the home and is
treated as the home itself for Fourth Amendment purposes. See United States v. Dunn, 480 U.S.
294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987); U.S. v. Swepston, 987 F.2d 1510, 1513
(10th Cir. 1993); State v. Basurto, 15 Kan.App.2d 264, 807 P.2d 162, affirmed 249 Kan. 584
(1991). The curtilage is protected just as a home because it is an area "to which extends the
intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Id.
(quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). In
determining whether an area outside the home should be treated as the curtilage, the Supreme
Court has identified four factors to consider. These factors include (1) the proximity of the area
claimed to be curtilage to the home, (2) whether the claimed area is within an enclosure
surrounding the home, (3) the uses to which the area is put, and (4) the steps taken to protect the
area from observation by people passing by. Dicesare v. Stout, 992 F.2d 1222 (10th Cir. 1993).

State v. Waldschmidt, 12 Kan.App.2d 284, 740 P.2d 617, rev. denied 242 Kan. 905 (1987), the
Kansas Court of Appeals held that a fenced back yard was within the curtilage. In that case, the
court noted the yard was behind and immediately adjacent to the residence and was surrounded
by a six-foot high wooden privacy fence which obstructed the view of the yard. The court found
the fence was of the type used for intimate family activities and by erecting it, the defendant
exhibited a subjective expectation of privacy that society will protect as reasonable. Thus, when
a law enforcement officer scaled the fence, placed his arm and flashlight over the fence, and
observed marijuana plants, the court suppressed the plants as the product of an unconstitutional
warrantless search. 12 Kan.App.2d at 286, 290.

State v. Mitchell, 8 Kan.App.2d 265, 655 P.2d 140 (1982), in which the defendant's residence
was located one-eighth of a mile from a public road, along a private driveway. The house and
yard were enclosed in part by a decorative stone wall 3 to 3 ½ feet high with a wire gate
permitting access. The day after a murder on the property, an officer entered the yard through
the wire gate and found a spent shell casing near the house. The defendant, the wife of the
murder victim, moved to suppress the shell casing as the product of an unconstitutional search.
The court granted the motion, and the court of appeals affirmed, finding the warrantless search
of the curtilage was unreasonable under the Fourth Amendment. The court noted that the
seriousness of a homicide investigation alone does not create exigent circumstances sufficient to
justify a warrantless search of a constitutionally protected area.

The existence or non-existence of a lock on a gate does not appear to be determinative.
In Mitchell, for example, the court quoted a passage from 68 Am.Jur.2d, Searches and Seizures §
20, which stated that a person who surrounds his backyard with a fence "‛and limits entry with a
gate, locked or unlocked, has shown a reasonable expectation of privacy for the area, and it is
protected from unreasonable search and seizure by the Fourth Amendment.'" (Emphasis added).
Mitchell, 8 Kan.App.2d at 268.

E.Does an Exception Apply?

Although the Fourth Amendment generally requires a warrant in order to search and
seize property, the rule is riddled with exceptions. The exceptions recognize various
circumstances that make obtaining a warrant impractical or unrealistic in a specific situation. A
general caveat about relying on an exception to the warrant requirement: The exceptions are
narrowly construed, and the state has the burden of proof to show than an exception applies. If
the state does not carry its burden, the evidence will be excluded or the person will be released,
and the officer collecting the evidence or making the arrest may be liable for civil damages to the
person whose rights were infringed.

IV.Exceptions to the Warrant Requirement

A.Search Incident to Arrest

1.Definition:

Because of the need to search for weapons and contraband, courts have long permitted
police who have made a valid custodial arrest to search incident to arrest. The principal
requirements for a search incident to arrest are a valid custodial arrest based upon either an arrest
warrant or valid probable cause, and a reasonably contemporaneous search.

The search incident to an arrest may be made any time an officer makes a valid
"custodial arrest." If the officer is permitted to take the suspect into custody, a search incident to
arrest may be carried out despite the fact that the offense is a “minor” or “traffic offense."

United States v. Robinson, 414 U.S. 218 (1973).

a.The Defendant was arrested for driving on a revoked driver's license and the search of his
coat pocket was held valid. United States v. Robinson, 414 U.S. 218, 235 (1973).

1.Atwater v. City of Lago Vista, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No.
No. 99-1408, filed April 24, 2001). Motorists 4th Amendment right to be free from unreasonable
search & seizure was not violated after she was arrested, handcuffed and taken to jail for failing
to wear her seatbelt, failing to put her kids in seatbelts, driving without a license and failing to
provide proof of insurance. The Fourth Amendment does not limit use of custodial arrests for a
fine-only offenses committed in an officer's presence. Common law did not clearly prohibit an
arrest in such a situation, nor did it limit arrests to only misdemeanors involving a breach of the
peace. Affirms Fifth Circuit opinion 195 F.3d 242 (1999 CA-5 Tex.)(en banc)(three judges
dissenting).

b.The search is valid as soon as probable cause is developed, even though the actual arrest
is not until after the search is completed. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

c.Search and seizure activity that is objectively reasonable is not made unreasonable
merely because of the searching officer's mistaken, subjective beliefs. Maryland v. Macon, 472
U.S. 463, 470-71 (1985).

2.Reasonably Contemporaneous

a.Search of defendant's clothes 10 hours after a valid warrantless custodial arrest was valid
because clothes could not be removed and searched because another set of clothing was not
available until then. United States v. Edwards, 415 U.S. 800, 805 (1974)

b..Search of an automobile at the police station after the suspects were arrested and the car
was impounded could not be supported as search incident to arrest. "The reasons which have
been thought sufficient to justify the warrantless searches carried out in connection with an arrest
no longer obtain when the accused is safely in custody at the station house." Chambers v.
Maroney, 399 U.S. 42 (1970).

3.Scope

Allows search of the person and area within his immediate control to disarm and prevent
destruction of evidence. Chimel v. California, 395 U.S. 752, 763, (1969).

a.immediate control

The area from within which he might gain possession of a weapon or destructible
evidence. Chimel v. California, 395 U.S. 752, 763, (1969); State v. Press, 9 Kan. App.2d 589
(1984).

b.Scope of Search in a House

If a suspect is arrested outside of his house, a search inside the dwelling cannot be
supported as a search incident to arrest. Vale v. Louisiana, 399 U.S. 30 (1970).

However, if the defendant needs to go into his home, or to another room, to find
identification and change clothes, the police may follow "at his elbow." Washington v.
Chrisman, 455 U.S. 1 (1982).

The police may also engage in a "protective sweep" of the "immediately adjoining
spaces" of the area of the house were the defendant is arrested if the police have a reasonable
belief, based upon specific and articulable facts, that the area to be swept harbors persons posing
a danger to those on the arrest scene. The sweep should be no more than a "cursory inspection"
and into adjoining area. Maryland v. Buie, 494 U.S. 325 (1990).

c.Scope of Search of vehicle

1.Federal Courts

A police officer, who has made a lawful custodial arrest of the occupant of an
automobile, may make a contemporaneous search of the passenger compartment of that
automobile. The police may also search any containers, ranging from glove compartments to
luggage, found within the passenger compartment. They may not, under this exception, search
the trunk. However, if contraband is found in passenger compartment, the automobile exception
to the warrant requirement arises. New York v. Belton, 453 U.S. 454 (1980).

United States v. Olguin-Rivera, 168 F.3d 1203 (10th Cir. 1999). There was no violation of the
Fourth Amendment when officers searched the cargo area of an Isuzu Rodeo covered by a
retractable cover where the search is incident to the arrest of the driver. The presence of built in
cover does not make the area equivalent to an automobile trunk.

2.Kansas Courts

State v Anderson, 259 Kan. 16 (1996).

FACTS: Officer searches the vehicle of the defendant after he arrests her for a traffic warrant
for violation of the child restraint law and suspended license. The search of the glove
compartment revealed methamphetamine residue that lead to the discovery of methamphetamine
manufacturing equipment in the trunk and motel room.

HOLDING: The court held unlawful search incident to arrest due to K.S.A.22-2501 that says
"evidence of the crime" thereby narrowing the "bright line" test of the Belton case. In other
words, the officer was not looking for the fruits of the child restraint or suspended license
infraction.

On July 1, 2006, the legislature changed K.S.A. 22-2501 to allow officer to search
incident to arrest to protect officers from attack; prevent the defendant from escaping; or
discovering the fruits, instrumentalities, or evidence of "a" crime. The legislative change was
thought to bring Kansas in line with every other state that followed Belton. But the Supreme
Court dealt Belton a massive blow in Arizona v. Gant, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d
___ (No. 07-542, filed 04/21/09). The Supreme Court ruled police violated the defendant's
rights by searching his car incident to arrest. Rodney Joseph Gant was handcuffed, seated in the
back of a patrol car and under police supervision when Tucson, Ariz., police officers searched
his car. They had just seen him drive up to a house suspected of drug activity, and knew he had
a warrant for driving while suspended. A sharply divided Arizona Supreme Court ruled that the
search violated the Fourth Amendment. The Supreme Court agreed. It held that police can only
search a car incident to arrest when it is reasonable to believe that the arrestee might gain access
to the vehicle at the time of the search or that the vehicle contains evidence of the offense of
arrest. "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is
within reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest. When these
justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police
obtain a warrant or show that another exception to the warrant requirement applies."

B.Automobile Search

1.Definition:

Law enforcement can perform a warrantless search of an automobile, boat or other
vehicle if the officer has probable cause to believe that contraband is in the automobile. Carroll
v. United States, 267 U.S. 132 (1925).

2.Rationale:

a.Automobile exception partially based on impracticality of obtaining a warrant given the
"inherent mobility" of vehicles. United States v. Chadwick, 433 U.S. 1, 12 (1977).

b.Warrantless search justified by lessened expectation of privacy in automobile because of
physical characteristics and pervasive regulation of moving vehicles. New York v. Class, 475
U.S. 106, 112-3 (1986).

3.Requirements

a.Probable cause

As a general matter, probable cause to search will be found when the facts and
circumstances in a given situation are sufficient to warrant a person of reasonable caution to
believe that items connected to criminal activity are located in the place to be searched. Carroll
v. United States, 267 U.S. 132, 69 L.Ed.2d 543, 45 S.Ct. 280 (1925).

Maryland v. Dyson, ___ U.S. ___, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Officers received
tip from reliable CI that defendant would be driving a rented red Toyota, license No. DDY 787
containing a quantity of cocaine. Officers corroborated by observing defendant, a known drug
dealer, in a red Toyota Corolla with the same license number. Stopped, searched and arrested.
Maryland held warrantless search of car must be supported by probable cause and exigent
circumstances. United States Supreme Court summarily reversed in a per curiam opinion.
Automobile exception allows warrantless searches based on probable cause due to the unique
exigency of the automobile itself.

b.Mobility

1.When police officers have probable cause to believe there is contraband inside an
automobile that has been stopped on the road, the officer may conduct a warrantless search of
the vehicle, even after it has been impounded and is in police custody... It is thus clear that the
justification to conduct such a warrantless search does not vanish once the car has been
immobilized. Michigan v. Thomas, 458 U.S. 259, 261, (1982).

Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed2d 748 (1999). When officers have
probable cause to believe that a vehicle is forfeitable contraband, they do not have to obtain a
warrant to seize and search the car. Analogizing to the inherent mobility doctrine first
announced in Carroll v. United States, 267 U.S. 132, 149 (1925), the Court said the need to seize
readily movable contraband before it is spirited away is "equally weighty when the automobile,as opposed to its contents, is the contraband the police seek to secure."

2.Apparent mobility --

A stationary mobile home was in a public parking lot. The police received information
that a mobile home was being used to sell marijuana. A warrantless search was conducted. The
Court held it valid because an objective observer could believe that the home was being used as
a vehicle rather than a residence. Factors considered were if mobile home was on blocks,
licensed, connected to public utilities or located near a public road. California v. Carney, 471
U.S. 386 (1985).

c.Timing

Law enforcement seized a vehicle and didn't do a warrantless search of it until three days
later at U.S. Customs headquarters. The search was held valid because they could have had
searched it immediately at the scene under the automobile exception. United States v. Johns,
469 U.S. 478, 483-7 (1985).

4.Scope of Automobile Search

Police may search any where in the vehicle and any containers that may contain the items
sought if they have a generalized belief that the vehicle contains contraband somewhere inside
the vehicle. United States v. Ross, 456 U.S. 798, 825 (1982).

a.containers and automobile search exception

Probable cause as to container - Police may perform a warrantless search of a container
inside a vehicle based upon probable cause that the container, not the vehicle, has contraband
located inside of it. California v. Acevedo, 500 U.S. 565, 573 (1991). The question is whether
the container searched is capable of concealing the object of the search. United States v. Ross,
456 U.S. 798, 825 (1982).

2.Probable cause to entire car - When there is probable cause to believe that the automobile
as a whole contains contraband, the entire vehicle, including containers, can be searched.
California v. Acevedo, 500 U.S. 565, 573 (1991). Again, officers are limited to containers that
are capable of concealing the object of the search. United States v. Ross, 456 U.S. 798, 825
(1982).

Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If there is
probable cause to search a vehicle for drugs, officers can look anywhere in that vehicle where
drugs might be concealed, including a passenger's purse.

d.The search incident to arrest requires a search contemporaneous with the arrest

e.An auto search may take place later.

C.Emergency Search

Although his heading is titled "Emergency Search," two similar, but related concepts will
be discussed herein - the Emergency Doctrine and Exigent Circumstances.

Emergency Doctrine

The emergency doctrine is based on the realization that police do more than merely find
and arrest criminal law violators. Officers must establish a concern for someone's safety and
emergency circumstances. In other words, officers must articulate such an emergency that an
immediate warrantless entry and search is imperative. Monroe v. Darr, 221 Kan. 281, 287, 559
P.2d 322 (1977). Do not confuse this exception with the exigent circumstances exception -- they
have different purposes and applications.

In State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997), the Kansas Court of
Appeals gave the following explanation of the emergency doctrine:

The emergency doctrine reflects a recognition that the police perform a
community caretaking function which goes beyond fighting crime. See 3 La Fave,
Search and Seizure § 6.6, pp. 389-90 (3d ed. 1996). Under this function, the
community looks to the police to render aid and assistance to protect lives and
property on an emergency basis regardless of whether a crime is involved.
Warrantless entries into and searches of private property pursuant to this
exception are not prohibited by the Fourth Amendment to the United States
Constitution or by Section 15 of the Kansas Constitution Bill of Rights.

The emergency exception to the warrant requirement has been recognized by the United
States Supreme Court and by numerous state and federal courts. [Citations omitted]. In
Mincey, the Supreme Court stated:

"We do not question the right of the police to respond to emergency situations.
Numerous state and federal cases have recognized that the Fourth Amendment does not
bar police officers from making warrantless entries and searches when they reasonably
believe that a person within is in need of immediate aid. . . . 'The need to protect or
preserve life or avoid serious injury is justification for what would be otherwise illegal
absent an exigency or emergency. [Citation omitted]. And the police may seize any
evidence that is in plain view during the course of their legitimate emergency activities.
[Citations omitted.]" 437 U.S. at 392-93.

State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997).Emergency doctrine justified officers'
warrantless entry and search of a residence to look for a missing subject whose parents were
concerned about him. Instead, the officers found the defendant and his drugs and drug
paraphernalia therein.

Requirements to Satisfy the Emergency Doctrine

(1)the police must have reasonable grounds to believe that there is an emergency at
hand and an immediate need for their assistance for the protection of life or
property.

(2)The search must not be primarily motivated by intent to arrest and seize evidence.

(3)There must be some reasonable basis, approximating probable cause, to associate
the emergency with the area or place to be searched. Jones, 24 Kan. App. 2d at
314.

EXIGENT CIRCUMSTANCES OR HOT PURSUIT

1. Definition: In some kinds of cases, the urgency of a situation and the need to take immediate,
warrantless action will render official conduct "reasonable" under the Fourth Amendment. Such
exigencies may justify searches or seizures of persons, vehicles and other property, though they
may be used most often to justify a warrantless entry into a home. Steagald v. United States, 451
U.S. 204 (1981).

State v. Gilbert, 24 Kan.App.2d 159 (1997). Domestic violence call and reason to believe the
victim and aggressor are still in the residence. The court held that based on the officer’s
experience with domestic violence cases and the circumstances present (911 call, sounds of
struggle, no answer at the door) the officer could forcibly enter and search.

2. Rationale

The Fourth Amendment does not require police officers to delay in the course of an
investigation if to do so would gravely endanger their lives or the lives of others. Warden v.
Hayden, 387 U.S. 294, 298-9 (1967) (cab driver who had been robbed five minutes before
followed suspect to house and radioed location to company dispatcher, who told police). More
appropriately considered “exigency” case rather than hot pursuit. See United States v.. Santana,427 U.S. 38 (1976).

We do not question the right of the police to respond to emergency situations. Numerous
state and federal cases have recognized that Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably believe that a person within is in
need of immediate aid. . . . The need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an exigent or emergency. Mincey v.
Arizona, 437 U.S. 385, 392 (1978).

3. Scope

The permissible scope of search must.. at the least, be as broad as may reasonably be
necessary to prevent the dangers [which excuse the warrant]. Warden v. Hayden, 387 U.S. 294,
299 (1967).

Exigent circumstances usually requires some type of chase, however brief. A drug
supplier cannot complain of unconstitutional entry when she exposed a transaction to public
view but then retreated into her house when police identified themselves. United States v.
Santana,427 U.S. 38 (1976). However, seriousness of crime for which chase is made is a major
factor in determining existence of this exception. Welsh v. Wisconsin, 466 U.S. 740 750-3
(1984)(DUI is minor, civil offense and should rarely sanction warrantless entry of home).

Howard v. Dickerson, 34 F.3d 978, 982 (10th Cir. 1994) (Officer not entitled to non-consensual,
in-home arrest for careless driving and leaving the scene of an accident in violation of city
ordinances). In Howard, the 10th Circuit pointed out that both offenses were misdemeanors, and
stated, “[t]hese minor offenses do not merit the extraordinary recourse of warrantless home
arrest.” 34 F.3d at 982.

State v. Huff, 220 Kan. 162, 551 P.2d 880 (1976). The Kansas Supreme Court held that exigent
circumstances existed when a police officer (Baker) went to and entered an apartment where he
thought the suspects were. Baker was investigating a fresh armed robbery committed by four
males. About 40 or 45 minutes after Baker responded to an armed robbery at a store, he was
driving around looking for the four suspects. Baker went to and entered an apartment after
seeing a red ski mask or stocking cap on the floor in the apartment. An unknown citizen
approached the officer and advised he had seen four ‟guys” run up the steps to the apartment,
and the citizen described what the subjects were wearing, including one wearing a red ski mask
or stocking cap. Baker knocked on the door and when a woman answered, Baker saw a red ski
mask or stocking cap on the floor in plain view. After entering the apartment (without obtaining
consent), officers saw various items and weapons from the robbery in plain view. The Kansas
Supreme Court stated:

[T]he situation encountered by Baker, coupled with the facts known by him at the time he
observed the ski mask, were ample to constitute exigent circumstances. Baker had good
reasons to believe the apartment complex harbored four armed felons. Should Baker
have left his partner to surround the entire apartment while he sought a magistrate? The
exigent circumstances encountered by Baker fully justified the warrantless arrest in the
inherently dangerous felony case in which he was involved. The circumstances here are
clearly distinguishable from those related in [State v. Schur, 217 Kan. 741, 538 P.2d
689], wherein observation through a window of what was thought to be a burning
marijuana cigarette, in the absence of any other circumstances, was held insufficient to
justify a warrantless search. Where exigent circumstances exist the business of
policemen is to act, not to speculate or meditate on whether the information received by
them is correct. [Citations omitted]. 220 Kan. at 166.

4.Examples

a.Threats of death or serious bodily harm, or rescuing/aiding those in distress.

The police followed a robbery suspect into his house and found evidence in a location a
floor away from the suspect. The Court found the search justified because exigencies made the
court imperative." Warden v. Hayden, 387 U.S. 294, 299 (1967).

State v. Weas, ___ Kan. App. 2d ___, 992 P.2d 221 (1999). Probable cause to believe
kidnapping, battery and rape occurred, and evidence of those crimes and/or the assailant(s) were
in a house justified warrantless entry based on exigent circumstances. Officers did not find
assailants, but saw drugs in plain view. They obtained a warrant, then seized the drugs. Initial
entry lawful based upon probable cause and exigent circumstances. Alternative ground is
independent source, because warrant could have issued for person crimes.

When items of property come into the possession of the police they may have the right to
search the items in order to inventory the contents. Neither specific probable cause nor a warrant
is necessary.

2.Rationale

The warrantless search of the contents of the glove compartment of an abandoned
automobile lawfully impounded by the police held to be reasonable because it served legitimate
governmental interests -- to protect the contents of the car to guard against false claims of theft
and to protect the police. South Dakota v. Opperman, 428 U.S.. 364 (1976).

3.Requirements

a.The car or other item is lawfully impounded

b.the search in scope and purpose is conducted to inventory the property and not to
discover evidence of a crime

c.the search is pursuant to regular procedures

State v. Canaan, 265 Kan. 835, 843-44, 964 P.2d 681 (1998). An officer impounding a vehicle
may make a "warrantless inventory search of the personal property within the vehicle, including
the glove box and trunk, when the same may be accomplished without damage to the vehicle or
its contents." Quoting State v. Fortune, 236 Kan. 248, Syl. ¶ 5, 689 P.2d 1196 (1984).

The inventory may also extend to closed containers found in an impounded vehicle, as
long as the inventory is carried out pursuant to standard procedures. Colorado v. Bertine, 479
U.S. 367 (1987); See alsoIllinois v. Lafeyette, 462 U.S. 640 91983) (approving police inventory
of jail inmate's property).

4.When can police lawfully impound a vehicle?

Police may impound vehicles under the following circumstances: (1) an unattended-to
car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the
scene of an accident when the driver is physically or mentally incapable of deciding upon steps
to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or
seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when
its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective
as to be a menace to others using the public highway; (6) a car impoundable pursuant to
ordinance or statute which provides therefor as in the case of forfeiture....State v. Teeter, 249
Kan. 548, 552, 819 P.2d 651 (1991)(quoting State v. Boster, 217 Kan. 618, 624, 539 P.2d 294
(1975), overruled on other grounds,State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984)).

State v. Canaan, 265 Kan. 835, 844, 964 P.2d 681 (1998). "When the owner, operator, or person
in charge of a vehicle is capable and willing to instruct police officers as to the vehicle's
disposition, then absent some other lawful reason for impounding the vehicle, the person should
be consulted, and his or her wishes followed concerning the vehicle's disposition. If the
impoundment of the vehicle is unreasonable and, therefore, unlawful, the inventory search
following impoundment is unlawful. All evidence obtained through an unlawful search is
inadmissible and must be suppressed." Quoting State v. Teeter, 249 Kan. 548, 552, 819 P.2d 651
(1991). But see State v. Shelton, 278 Kan. 287, 93 P.3d 1200 (2004)(Police consultation with a
driver regarding the disposition of the vehicle is but one factor, although an important factor, to
be considered among the totality of the circumstances in the determination of whether
impoundment is reasonable).

E.Consent

"In a society based on law, the concept of agreement and consent should be given a
weight and dignity of its own. Police officers act in full accord with the law when they ask
citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her
wishes and for the police to act in reliance on that understanding. When this exchange takes
place, it dispels inferences of coercion." United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___,
___ L.Ed.2d ___ (No. 01-631, 6/17/2002).

1.Definition

Without probable cause or a warrant, the police can search when they have voluntary
consent from the individual. The consent must in fact be voluntary and not the result of duress
or coercion express or implied. State v. Pearson, 234 Kan. 906, 631 P.2d 605 (1984);
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

2.Standard: “Totality of the Circumstances”

a.Voluntariness is a question to be determined from all the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state has burden
to prove consent to search is voluntarily, intelligently and knowingly given. The trier of fact
must decide issue in light of the totality of the circumstances, and its decision will not be
reversed unless clearly erroneous. State v. Rexroat, 266 Kan. 50, 966 P.2d 666 (1999).

The failure of law enforcement to inform the defendant of their right to refuse the consent
to search is a consideration but not dispositive, on the issue of voluntariness. Schneckloth v.
Bustamonte, 412 U.S. 218, 225-26, 93 S.CT. 2041, 36 L.Ed.2d 854 (1973). After stopping a car
for a traffic violation, the officer is not automatically required to inform the driver that he was
free to go before asking consent to search the vehicle. Ohio v. Robinette, 519 U.S. 33, 35, 117
S.Ct. 417, 136 L.Ed.2d 347 (1996). Nor do officers have to tell bus passengers they have a right
to refuse if the officers do not use coercive tactics to obtain the consent. Drayton, ___ U.S. at
___.

State v. Reason, 263 Kan. 405 (1997). Officer approached BMW with New Mexico temporary
tags and both doors open that was in a park in Wichita. Defendant and a passenger were asleep
in car. Defendant consented to search of car, but later said it was without consent when cops
found crack pipe, large bag of marijuana under back seat, two more in trunk, and cigarette box
filled with cocaine. Court said initial contact was voluntary, Reason was advised he was free to
go, but chose to stay and talk to officers. Consent that came 20 minutes later during
investigatory detention was valid.

b.Coerciveness or lack thereof by officers

Consent to search is voluntary when the defendant provide officer keys to vehicle.
United States v. Zapata, 18 F.3d 971 (1st Cir. 1994).

State v. Rice, 264 Kan. 232, 955 P.2d 1258 (1998). Duty to investigate anonymous call
complaining of loud noise and possible marijuana use does not justify detention of all visitors
upon entry into an apartment. Visitor's consent to search person was coerced by finding of
marijuana inside apartment on window sill.

United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631,
6/17/2002). Three officers boarded a stopped bus with the driver's consent. One stayed at the
front kneeling on the driver's seat, not blocking the aisle. The other two went to the back and
worked their way forward. One questioned passengers, while the other stood behind him. The
one questioning passengers used a normal speaking voice, stayed beside or behind the passenger,
and would have allowed them to leave if they wanted to. All officers in plain clothes, carried
concealed weapons, and displayed badges. The one questioning passengers identified himself as
a Tallahassee Police Officer and showed his badge. He asked about their travel plans, told
passengers they were conducting bus interdiction in an attempt to deter drugs and illegal
weapons transportation, and asked if the passengers had any bags. If they identified bags, he
asked "Do you mind if I check it.?" Upon affirmative response, he would check the bag. The
two defendants were both wearing baggy clothes and heavy jackets. Both pointed to one green
bag as theirs, where no drugs were found. The officer asked if they had any drugs or weapons in
their possession, and asked one defendant "do you mind if I check your person?" That defendant
said, "sure," and cooperated by leaning forward and opening his jacket. The officer patted down
his jacket and pockets, including his waist area, sides and upper thighs. He felt hard objects
similar to drug packages, and arrested that defendant. He then asked the other defendant, "Mind
if I check you?" The second defendant lifted his hands about eight inches from his legs. A pat
down detected drug packages in the same area. He was arrested as well. The first defendant had
483 grams of cocaine, and the second 295 grams. The court of appeals erred in suppressing this
evidence because the defendants consented, and that consent was not invalidated by a coercive
atmosphere created by the officers.

c.Accused's age, intellect and background, including prior experience with law
enforcement. Schneckloth v. Bustamonte, 412 U.S. at 225-26.

d.Defendant's attitude about the likelihood of the discovery of contraband

Defense attorneys are fond of the argument that the defendant must have been "seized"
within the meaning of the Fourth Amendment at the time they consented to a search because, as
the argument goes, "no reasonable person would consent to a search of their person or baggage
where drugs are found." The argument should not fly. The reasonable person test is objective
and "presupposes an innocent person. Florida v. Bostick, 501 U.S. at 437-38; Drayton, ___ U.S.
at ___. See also United States v. Crespo, 834 E.2d 267, 272 (2d Cir. 1987)(It does not matter
that defendant agreed to a search because he likely believed the police would not find contraband
hidden in a bag on the closet shelf.).

e.Length of detention and nature of questioning. Schneckloth v. Bustamonte, 412 U.S. at
225-26.

f.Silence is not presumed to be consent

United States v. Gray, ___ F.Supp. ___ (No. 98-40103-01-RDR, filed 4/14/99). Officers
executed arrest warrant for another at defendant's home. Asked woman who answered door for
ID. She left door open when she went to get it. Officers walked in without consent (they asked,
she did not respond) and discovered baggie of marijuana and paraphernalia. Leaving door open
was not consent to enter, and failure to object to entry is but one factor. Officers failed to prove
consent or exigent circumstances, so evidence is suppressed.

4.Other considerations

a.If the consent is limited, the search must be similarly limited.

A police officer who has obtained a suspect's general consent to search his vehicle for
certain items does not violate the Fourth Amendment by opening closed containers found within
the vehicle that might reasonably hold the object of the search. Florida v. Jimeno, 111 S.Ct.
1801 (1991)

b.Defendant under the influence

Mere fact of intoxication, influence of drugs or mentally agitated does not necessarily
make consent involuntary.

Consent can be valid if custodial arrest even after invoking Miranda. United States v.
Watson, 423 U.S. 411, 424 (1976). A prior illegal seizure doesn't invalidate consent if the illegal
seizure is not used to obtain the consent. State v. Ninci, 262 Kan. 21, 33, 936 P.2d 1364 (1997).

d.Threat of obtaining search warrant

Misleading a defendant by stating that a search warrant is assured or that one has already
been obtained renders consent invalid. Bumper v. North Carolina, 391 U.S. 543, 550 (1968).

e.Third Party Consent

In addition to the defendant, consent can be given by a person with common authority, or
other sufficient relationship to, the place or effects being searched. U.S. v. Matlock, 415 U.S.
164 (1974)(absent roomate), Coolidge v. New Hampshire, 403 U.S. 443, 488-89 (1971)(no
"search" where wife voluntarily led police to potential evidence of wrongdoing, and wife was
not acting as the government's agent). The Court defined common authority as not resting upon
the law of property but rather on mutual use of the property by persons generally having joint
access or control. The theory is based upon the defendant assuming the risk of a third party
consenting.

But see Georgia v. Randolph, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04-1067, filed
3/22/06). Consent to search common areas given by one occupant is not valid when another
occupant is present and objects to the search. Scott and Janet Randolph were married, but
suffered some difficulties. Janet took her son and went to stay with her parents in Canada for a
couple months. She and the son then returned to the marital residence, and two days later Janet
called police for a domestic dispute. Janet told police that Scott used cocaine. Scott returned
and said it was Janet who abused drugs and alcohol. Janet later told police there was drug stuff
in the house. Officers sought permission to search from Scott, but he unequivocally denied
consent. Janet gave consent, and officers saw, in Scott's bedroom, a drinking straw and a white
powdery substance. The officers collected the plain view evidence and called the DA's office,
who advised them to get a warrant. Janet then withdrew her consent. Officers took the
Randolphs and the straw to the police station, and returned to the residence with a search
warrant, seizing other drugs and paraphernalia. Scott was indicted for possession of cocaine, and
moved to suppress the evidence claiming the initial consent search was illegal. The United
States Supreme Court, in a 5-3 decision, agreed. Although an occupant with apparent authority
over common areas can give valid consent and the evidence can be used against an absent co-occupant, United States v. Matlock, 415 U.S. 164, 170 (1974), the court held "a situation in
which two persons have equal use and control of the premises to be searched, we conclude the
consent to conduct a warrantless search of a residence given by one occupant is not valid in the
face of the refusal of another occupant who is physically present at the scene to permit a
warrantless search." The court reasoned that the apparent authority doctrine is premised on an
assumption of risk theory, and that theory does not when the co-occupant is actually present and
objects to the search. The dissent criticizes this "arbitrary" rule, and states, "[t]he end result [of
the majority opinion] is a complete lack of practical guidance for the police in the field, let alone
for the lower courts." Randolph, ___ U. S. at ___ (Roberts, C.J., dissenting).

Stoner v. California, 376 U.S. 483 (1964)(hotel manager cannot consent to search of a
guest's room); United States v. Jeffers, 342 U.S. 48, 51 (1951)(hotel staff had access to room for
purposes of cleaning and maintenance, but no authority to admit police).

2.Roommates

State v. Savage, ___ Kan. App. 2d ___, 10 P.3d 765 (2000). Phone tip staying the caller
lived in a house at a certain address and had access to the entire house, that one of his roommates
was growing marijuana in the house on the kitchen window sill, and that he would admit an
officer if one would come out, when corroborated by another officer, certainly supplies probable
cause to issue a warrant for the residence. The district court's granting of motion to suppress was
reversed.

3.Reasonable Belief of Apparent Authority

A reasonable belief that the party has common authority will validate the search, even if
mistakenly relied upon. Illinois v. Rodriguez, 497 U.S. 177 (1990); State v. Ratley, 16 Kan. App.
2d 589 (1992). Reliance on the authority must be reasonable based upon facts known to police
at the time

United States v. Gay, ___ F.3d ___ (10th Cir. No. 00-6099 filed 2/12/2001). Officers' reasonable
reliance on confidential informant and reasonable belief that defendant-arrestee (1) lived in
residence at time of entry to search it is sufficient to justify entry, so long as defendant had
common authority over, or other significant relationship to premises, and (2) defendant was in
residence at the time of entry.

State v. Kimberlin, 26 Kan.App.2d 28, 977 P.2d 276 (1999). When officers responded to a
domestic violence call, consent by victim to entry of one officer also applies to backup officer.
The added intrusion is only minimal when compared against officer safety interest. Officers
responded to 911 call. Drunk, angry and belligerent male ordered them to leave. Officers left,
then came back when they heard defendant yelling at female. Belligerent male ordered them to
leave again, but they eventually arrested him for disorderly conduct. Female came outside and
said male tore up a roommate's bedroom. She gave one officer consent to inspect damage. The
other officer followed, and found defendant near some roaches in an ashtray. Officers asked for
general consent which was refused. Based on view of roaches, officers got a search warrant and
searched the house, yielding drugs.

State v. Strange, (Kan.App. No.77,949, unpublished opinion filed 3/5/99). Conviction of
aggravated burglary reversed where state failed to prove entry without authority. Both defendant
and his girlfriend were on lease. Neither had been evicted, although defendant voluntarily
moved out 3 weeks prior to the alleged burglary. See also State v. Harper, 246 Kan. 14, 785
P.2d 1341 (1990)(state failed to prove entry without authority when employee entered business
at 2:00 a.m. to steal files. Employer had asked for keys back, but knew defendant retained keys
intending to use them to retrieve tools. Employer did not insist on return of keys or otherwise
place specific limitations on defendant's access to building).

United States v. Rith, 164 F.3d 1323 (10th Cir.), cert. denied ___ U.S. ___ (1999 WL279818).
Circuit set forth the rules on authority for consent to search a home. The defendant's parents
believed defendant was involved in gang activity and saw him carrying guns into their home.
The parents requested officers to search the house to determine whether the guns were stolen.
They gave the officers a house key, but did not accompany them to the home. Defendant, an 18
year old who did not pay rent, initially denied entry and asked for a search warrant, but stated
"okay, come in," when officers showed him the house key. Court held that a valid consent given
by someone with authority cannot be revoked by a co-occupant's denial of consent, even if the
denial is clear and contemporaneous with the search. Court held the state proves authority by
showing either (1) mutual use of the property by virtue of joint access, or (2) control for most
purposes over it. The court also noted that a presumption of control exists where the co-occupants are parents and children.

F.Plain View

1.Definition

If an officer is in a place where he has the right to be and sees an item in plain view, he
may search or seize the item so long as he has probable cause that the item is connected to
criminal activity. Harris v. United States, 390 U.S. 234, 771-2 (1983).

2.Rationale

Although "plain view" is often cited as an exception to the search warrant requirement, it
really is better described as a "nonsearch" because no legitimate expectation of privacy is
implicated if police, lawfully where they have a right to be, view what anyone else has the
ability to view. "What a person knowingly exposes to the public, even in his own home or
office, is not subject to Fourth Amendment protection." Katz v. United States, 389 U.S. 347,
361, (1967).

3.Example

During the course of a lawful traffic stop, the police officer saw a tied-off opaque balloon
lying on the seat of the stopped vehicle. The officer was lawfully positioned, and his experience
indicated the incriminating nature of the balloons. Texas v. Brown, 460 U.S. 730 (1983); see
alsoState v. Jones, 233 Kan. 112 (1983).

Aids such as flashlights, searchlights, or binoculars which only enhance what could have
been seen in daylight or up close do not impact legality. Texas v. Brown, 460 U.S. 730 (1983)

United States v. Kyllo, ___ F.3d __ (No. 96-30333, 9th Cir. 1999). A divided court (2-1) holds
use of a thermal imaging device does not constitute a Fourth Amendment search. Police
received tips of a grow/sell operation at a residence. After examining defendant's utility bills
and discovering abnormally high electrical usage, an Oregon police officer pointed an Agema
Thermovision 210 thermal imaging device at a triplex and found one of the residences
substantially hotter than the other two. He obtained a warrant based on the thermal imaging and
the utility bills. A search yielded a grow operation. Defendant moved to suppress the evidence
claiming the thermal scan violated his Fourth Amendment rights. The 9th Circuit rejected the
argument, holding that thermal imaging is not a search. The Court held there is no subjective
expectation of privacy in the heat generated from within a residence, and if there were, society
would not protect the expectation as reasonable. Other courts have come to the same conclusion.
See United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995); United States v. Myers, 46 F.3d
668 (7th Cir. 1995); United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995); United States v.
Pinson, 24 F.3d 1056 (8th Cir. 1994). The only Court of Appeals to consider this question and
determine that the use of thermal imaging is unconstitutional was the Tenth Circuit in United
States v. Cusumaro, 67 F.3d 1497 (10th Cir. 1995). The opinion was vacated on rehearing en
banc on the ground that the court did not need to reach the thermal imaging question. See
United States v. Cusumaro, 83 F.3d 1247 (10th Cir. 1996).

The plain view doctrine applies by analogy to "plain feel" if the touching was lawful and
the incriminating nature of what was being felt was “immediately apparent” to the officer
conducting the search. Minnesota v. Dickerson, 113 5. Ct. 2130 (1993). Although the Court in
Dickerson recognized the "plain feel" corollary to the plain view rule, it refused to apply it
finding it was not "immediately apparent" when officer took a number of seconds to identify the
rock cocaine by rolling it in his fingers. The rock cocaine was in the pocket of a person being
patted down under a Terry stop & frisk. Minnesota v. Dickerson, 113 5. Ct. 2130 (1993).

State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998). Officers can do a "Terry" search of a
suspect's pockets if there is reasonable or probable cause to believe the nature of the items
located therein (usually drugs) is incriminating and this incriminating nature is immediately
apparent to the searching officer. Court will consider the totality of the circumstances, including
the officer's credibility, training, education and experience. Adopts Fourth Amendment
interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct.
2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.

e.Plain Shape

The police must have reasonable grounds to believe that the particular package carried by
the citizen is contraband. Its shape and design might at times be adequate. The weight of it and
the manner in which it is carried might at times be enough. Henry v. United States, 361 U.S. 98,
104 (1954).

Thus, some containers (for example a kit of burglar tools or a gun case) by their very
nature cannot support any reasonable expectation of privacy because their contents can be
inferred from their outward appearance. Arkansas v. Sanders, 442 U.S. 753 (1979).

G.Stop and Frisk

TERRY STOP

1.Definition

a.Case law definition:

Police may make a limited exception to the probable cause and warrant requirements of
the Fourth Amendment in that an officer may stop an individual if the officer has a reasonable
and articulable suspicion, based on an objective view of facts previously known to him, or made
known to him through observation, that the person stopped is committing, has committed, or is
about to commit a crime. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State
v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986).

Furthermore, when an officer has made a valid Terry stop, he may search a person for
firearms or other dangerous weapons if he reasonably suspects that his personal safety or that of
others nearby requires it. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State
v. Epperson, 237 Kan. 707, 711-712, 703 P.2d 761 (1985).

Police-Citizen Encounter Matrix

Interaction

Fourth Amendment Seizure?

Justification
Required

Voluntary Police-Citizen Encounter

No

None

Terry Stop

Yes

Reasonable
Suspicion

Arrest

Yes

Probable Cause

b.Statutory definition:

K.S.A. 22-2402

(1)Without making an arrest, a law enforcement officer may stop any person in a public
place whom such officer reasonably suspects is committing, has committed or is about to
commit a crime and may demand of the name, address of such suspect and an explanation of
such suspect's actions.

(2)When a law enforcement officer has stopped a person for questioning pursuant to this
section and reasonably suspects that such officer's personal safety requires it, such officer may
frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds
a firearm or weapon, or other thing, the possession of which may be a crime or evidence of
crime, such officer may take and keep it until the completion of the questioning, at which time
such officer shall either return it, if lawfully possessed, or arrest such person.

2.Standard

Reasonable articulable suspicion. “Courts have used a variety of terms to capture the
elusive concept of what cause is sufficient to authorize police to stop a person. Terms like
‘articulable reasons’ and 'founded suspicion’ are not self defining; they fall short of providing
clear guidance dispositive of the myriad factual situations that arise. But the essence of all that
has been written is that the totality of the circumstances - the whole picture - must be taken into
account. Based upon that whole picture the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” United States
v. Cortez, 449 U.S. 411, 417-418, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981). Reasonable suspicion
is "considerably less" than proof of wrongdoing by a preponderance of the evidence. Florida v.
Royer, 460 U.S. 491, 498 (1983). Reasonable articulable suspicion is viewed in terms as
understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S.
411, 66 L.Ed. 2d 621, 101 S.Ct. 690 (1981); State v. Keene, 8 Kan. App. 88,90, 650 P.2d 716
(1982).

State v. Toothman, 267 Kan. 412, 985 P.2d 701 (1999). An extremely nervous individual who
appeared to be on drugs and appeared to be in a stolen car provided reasonable suspicion for a
Terry stop and incident to the defendant's arrest for expired tag and no driver's license.

State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). DUI stop based on anonymous tip of
suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS
determined by both content and reliability in addition to threat to public safety as balanced
against intrusion into citizen's freedom and privacy. Although an anonymous tip is lowest in
reliability, quality of information given, subsequently verified by officer prior to stop, justified
stop under totality of circumstances.

State v. Hardyway, 264 Kan. 451, 958 P.2d 618 (1998). Voluntariness of consent to search car
after a traffic stop will not be reversed on appeal unless clearly erroneous. SCAT officers
stopped car after the passenger visited a known drug house and driver committed traffic
violations. Driver and passenger were informed of the violations, then the passenger was asked
for consent to search his person, which yielded drugs. The Supreme Court held consent valid
based on the totality of the circumstances. The officer's conduct must be viewed with "common
sense" considering "ordinary human experience." Policy is to prevent unrealistic second
guessing of police officer's decisions and defer to trained officer's ability to distinguish between
innocent and suspicious activity.

3.Rationale for lessened standard

Terry stops are limited to seeking an explanation of a person's actions and perhaps a frisk
of the outer clothing for weapons only. Based on officer safety reasons and the relatively slight
level of intrusiveness, Terry stops can be carried out on less than probable cause and without a
warrant. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 5. Ct. 1868 (1968); State v. Baker, 239
Kan. 403, 720 P.2d 1112 (1986) K.S.A.22-2402.

The basis of the stop of a vehicle was that it was traveling in tandem with another vehicle
on a high drug trafficking highway, the camper was heavily loaded, the windows were covered
and the vehicle's driver sped up when a marked patrol car (without emergency lights activated)
followed the vehicle. Perhaps none of these facts standing alone, would give rise to a reasonable
suspicion; but taken together as appraised by an experienced law enforcement officer, they
provided clear justification to stop the vehicle and pursue a limited investigation. United States
v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985).

United States v. Ryan, ___ F.Supp. ___ (No. 98-40094-01-RDR, filed 2/12/99, reh. denied
4/19/99). Stop for speeding and officers claimed following factors supported reasonable
suspicion: (1) defendant's hesitation when asked for consent to search; (2) defendant's
nervousness; and (3) officer's knowledge of defendant's alleged drug activity. Court held factor
one is inappropriate to consider in deciding whether reasonable suspicion exists; two of "little
significance" and three insufficient by itself to support reasonable suspicion to detain defendant
while awaiting a canine.

b.Timing of observations

The reasonable articulable suspicion must be based upon facts known to him or observed
by him prior to the stop. State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973).

Knowledge in the possession of one officer can generally be imputed to other officers to
established reasonable suspicion. This means the officer making the stop may not have enough
knowledge to establish reasonable suspicion cause by themselves, but the collective knowledge
or law enforcement, taken together, can establish reasonable suspicion. Note, however, the
information usually needs to be relayed to the officer actually making the stop.

1.Sheriff officer in one county observed facts that when taken together with facts
observed by sheriff officer in another county amounted to reasonable suspicion
although facts were not specifically relayed. State v. Niblock, 230 Kan. 156, 161,
631 P.2d 661 (1981).

2.United States v. Colon, ___ F.3d ___ (2d Cir. No. 00-1628, filed 05/14/2001). Caller
information given to a civilian 911 operator working for the New York Police Department but
not conveyed to the dispatching or arresting officer cannot be imputed to the arresting officer
under the collective knowledge doctrine as a basis for reasonable suspicion to justify a search of
defendant.

d.Duration of Detention

There is no set time limit on the detention's length as long as it is done in a reasonable and
diligent manner to quickly confirm or dispel the officer's suspicion. The question is not simply
whether some other alternative was available, but whether the police acted unreasonably in
failing to recognize or to pursue it. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105
S.Ct. 1568 (1985).

Example. The basis of the stop of a vehicle was that it was traveling in tandem with another
vehicle on a high drug trafficking highway, the camper was heavily loaded, the windows were
covered and the vehicle's driver sped up when a marked patrol car (without emergency lights
activated) followed the vehicle. The DEA agent stopped the car and didn't make contact with
driver of truck with camper until 15 minutes later. After confirming his suspicion, the DEA
Agent came back and arrested the driver of the car after almost 40 minutes of detention. The
Court ruled that the length of the detention under a Terry stop was justified by the circumstances.
United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985).

e.Scope of Questioning During Detention

An officer may demand of the name, address of such suspect and an explanation of such
suspect's actions. They may ask their questions in a way calculated to obtain an answer. But
they may not compel an answer, and they must allow the person to leave after a reasonably brief
period of time unless the information they have acquired during the encounter has given them
probable cause sufficient to justify an arrest. Kolender v. Lawson, 461 U.S. 352, 366, 75
L.Ed.2d 903. 103 S.Ct. 1855 (1983); State v. Latimer, 9 Kan. App.2d 687 P.2d 648 (1984).

Example. Officer's superiors instructed all officers to ascertain the identity of individuals
loitering in a public place near business buildings late at night because of burglaries. The time
was 4:00 a.m. and the person, who later turned out to own the business, would not give his name.
Instead of giving his name he pushed his way by the officer. The court said permissible Terry
stop and arrest for obstruction. City of Garden City v. Mesa, 215 Kan. 674 527 P.2d 1036
(1974). NOTE: If no push by defendant, then no obstruction, then no continued detention.
Remember, after dispel Terry suspicions, then suspect free to go

f.Use of Force

Use of weapons and restraints on a Terry Stop won't always transform it into an arrest. State
v. Nuccient, 15 Kan. App. 2nd 554 (1991). The degree of force allowed is commensurate with
the degree of dangerousness inherent in the information possessed by the police. This allows a
sliding scale of force in conducting a stop and frisk. United States v. Tilmon, 55 CrL 1008, (7th
Cir. 1994).

An officer held a man suspected of being the "stash holder" in a two man drug sale operation
at gun point on his knees behind the car he had been driving while the car was searched for
weapons - on Terry reasonable suspicion rather than probable cause. The court stated:

"Courts today will find a permissible use of force by the police under circumstances that
might have raised judicial eyebrows at the time the Terry decision was issued. While it
was once considered necessary, in order to justify a Terry frisk, for a law enforcement
officer to be ‘justified in believing that the individual whose suspicious behavior he is
investigating is armed and presently dangerous to the officer," it now suffices, in
appropriate circumstances, for the officer to be justified in believing that the individual
might be armed and dangerous. . .. This development is a product of the times. Twenty-five years ago it might have been unreasonable to assume that a suspected drug dealer in
a car would be armed; today, it could well be foolhardy for an officer to assume
otherwise.” United States v. Clark, 24 F.3d 299, 55 CrL 1256, (D.C. 1994).

Police had reasonable suspicion that defendant robbed a bank, was armed, and had
threatened to blow up the bank with a bomb. Police ordered him to pull over his vehicle, boxed
it in with five police cars, pointed weapons at him, ordered him out of the car with his hands up
and held a shotgun to his head as he lay face down on the shoulder of the road. The court said
not an arrest but Terry Stop. United States v. Tilmon, 55 CrL 1008, (7th Cir., 1994).

Aggravated robbery suspect not considered under arrest when officer stopped the vehicle
based upon reasonable suspicion and removed the suspect from vehicle and handcuffed him at
shotgun point. State v. Nuggent, 15 Kan. App. 2nd 554 (1991).

g.Flight From Identified Police Officer

If there is a seizure after flight from a police officer, it has been held that the flight itself
provides reasonable suspicion for an investigatory stop. State v. Pressley, 51 CrL 1010 (Wash
App, 1992)

Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Flight from a clearly
identified police officer in an area known for narcotics trafficking establishes reasonable
suspicion to support a Terry stop. After stopping Wardlow, officers conducted a Terry pat down
of an opaque bag he was carrying and discovered a .38 revolve and five live rounds. Wardlow, a
convicted felon, was properly convicted of unlawful use of a weapon by a felon.

TERRY FRISK

1.Frisk of Person

When an officer has made a valid Terry stop, he may search a person for firearms or other
dangerous weapons if he reasonably suspects that his personal safety or that of others nearby
requires it. Terry v. Ohio, 392 U.S. 1, 20 L Ed.2d 889, 88 5. Ct. 1868, (1968); State v. Epperson,
237 Kan. 707, 711-712, 703 P.2d 761 (1985) K.S.A.22-2401(2).

2.Rationale

Search is justified if a law enforcement officer has prior knowledge of facts, observes
conduct, or receives responses to the limited interrogation under Terry that, in light of his
experience, leads him to reasonably suspect his personal safety or others nearby are in danger.

State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973).

3.Limitations

The only justification for Terry frisk is the protection of police officers and others nearby.
The preservation of evidence is not one of the purposes of such a search. State v. Epperson, 237
Kan. 707, 711-712, 703 P.2d 761 (1985). Therefore, officers may conduct a pat down of
suspect's outer clothing, but cannot search inside the pockets unless they feel a weapon. Terry v.
Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 5. Ct. 1868, (1968); State v. Waddell, 14 Kan. App. 129,
784 P.2d 381 (1989).

Whenever the police have the requisite reasonable suspicion that an occupant of a vehicle is
armed, they may not only frisk his person, but look in the vehicle in places where a weapon
might reasonably be expected to be found. Michigan v. Long, 463 U.S. 1032, 77 L.Ed.2d 1201,
103 S.Ct. 3469 (1983). Officers can order any occupant out of a vehicle if he reasonably
believes the person is armed and dangerous. State v. Webb, 13 Kan. App.2nd 300, 769 P.2d
34(1989). Factors to be considered include: (a) furtive movements consistent with hiding or
retrieving a weapon; (b) high crime/drug/gang/gunshot area; (c) time of night. NOTE: Detail
these factors in your report. Simply writing "for officer safety reasons" is not sufficient.

H.Valid Administrative Search

1.Fourth Amendment Generally Protects Commercial Establishments

"The warrant clause of the Fourth Amendment protects commercial buildings as well as private
homes. To hold otherwise would belie the origin of that amendment and the American colonial
experience." Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978).

2.Exception - Intensely Regulated Industries

"Certain industries have such a history of government oversight that no reasonable expectation
of privacy could exist for a proprietor over the stock of such an enterprise. Liquor . . . and
firearms . . . are industries of this type; when an entrepreneur embarks upon such a business, he
has voluntarily chosen to subject himself to a full arsenal of government regulation." Marshall,
436 U.S. at 313.

For a warrantless administrative regulatory scheme to be valid, (1) a substantial government
interest must inform of the regulatory scheme; (2) the warrantless inspections must be necessary
to further the scheme; and (3) the inspection program must provide a constitutionally adequate
substitute for a warrant. New York v. Burger, 482 U.S. 691, 702-703 (1987); Contreras v. City of
Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997).

3.Consent - Alternative Grounds for Warrantless Search

By subjecting themselves to a licensing scheme, proprietors may be deemed to have consented to
inspections by police at reasonable times and during reasonable hours. See § 10-53 of the Code
of the City of Topeka (1994), as amended (licensed liquor premises to be open to police during
business hours).

I.Other Exceptions

If the police violate the defendant's rights, the evidence resulting from that violation is
generally inadmissbile in a criminal trial, and the violation subjects the officer to civil liability.
However, sometimes the evidence collected as a result of a violation by the officer still gets
admitted into evidence - generally when the officer acted in good faith, and no useful purpose
would be served by application of the exclusionary rule.

1.Inevitable Discovery

State v. Calhoun, ___ Kan. App. 2d ___, 19 P.3d 179 (2001). Motion to suppress cocaine
was properly denied where the defendant was stopped for speeding, gave officer several false
names (to avoid arrest on a warrant), and kept reaching towards the center of the vehicle.
Officer was reasonably concerned for his safety, and suspect would have been arrested on
warrant if he hadn't lied about his identity, so evidence would have been inevitably
discovered.

2. Reliance on an invalid warrant that appears to be valid on its face

United States v. Leon, 468 U.S. 897, 918-922, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh. denied
468 U.S. 1250 (1984). If officers actually obtain a warrant, and the warrant is not the
product of a false or fraudulent affidavit, the officer can reasonably rely upon the issuance of
the warrant even though the warrant is ultimately found to be invalid.

V.Execution of Searches/Warrants

1.Kansas Statues provide:

a.Warrant can be executed any time night or day. K.S.A. 22-2510.

b.Must be executed within 96 hours of its issuance. K.S.A. 22-2506.

c.Any law enforcement officer may execute a warrant. K.S.A. 22-2506.

d.All necessary and reasonable force may be used to effect an entry upon any building or
property or part thereof to make the arrest. K.S.A. 22-2508.

Above all, warrants must be served in a reasonable manner to comply with the Fourth
Amendment. Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000). Jury did not err in awarding a
$245,000 verdict against three Torrance, CA police officers for racially biased actions and
excessive force. Three 17 year-old boys were stopped in their car for a traffic violation. They
were removed at gun point; when frisked, one officer grabbed each boy's testicles and then
forcefully squeezed them. The three-judge panel upheld the verdict, noting that police
mistreatment of young people and minorities is not an isolated incident in the L.A. area or
elsewhere.

Illinois v. McArthur, ___ U.S. ___, 121 S.Ct. 946, ___ L.Ed2d ___ (2001). Police officers went
on a domestic standby while wife removed items from her husband’s trailer. After she finished,
she told officers he had "dope in there," and told officers it was under the couch. Officers asked
for, but did not receive consent to search. They refused to let husband reenter unescorted for
about two hours while they sought warrant. Officer briefly stood in doorway when husband
reentered to obtain cigarettes & make phone calls. Illinois appellate courts held this was illegal
detention. Supreme Court reversed, finding probable cause to believe that defendant had hidden
marijuana in his home, exigent circumstances (possible destruction of evidence) warranted brief
& limited entries, and officers sought a warrant with reasonable diligence. Distinguished Welsh
v. Wisconsin on basis of "jailable" v. "nonjailable" crimes as opposed to misdemeanor v. felony
crimes.

2.Knock and Announce Rule

The knock and announce rule emanates from the federal statute governing warrant service,
18 U.S.C. § 3109. This statute provides, in relevant part, that officers can break into a house or
building "if, after notice of his authority and purpose, he is refused admittance." Although the
rule does not technically apply to the states, State v. Tyler, 251 Kan. at 634, it has now been
incorporated into the Fourth Amendment reasonableness inquiry.

In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the
Supreme Court refused to allow states to carve out a blanket exception to knock and announce
requirement for felony drug warrant service. Although such searches frequently involve
potential threat to officer safety, whether police knock and announce will be one factor
considered in determining reasonableness of the search.

United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), reversing 91 F.3d
1297. The Fourth Amendment does not hold officers to a higher standard when a "no-knock"
entry results in the destruction of property. Where officers had probable cause to believe an
armed, dangerous escaped prisoner was present and obtained a no knock warrant to search,
breaking a single window in respondent's garage and pointing a gun through the opening did not
violate the Fourth Amendment and 18 U.S.C. § 3109.

K.S.A. 22-2509 states: In the execution of a search warrant the person executing the same
may reasonably detain and search any person in the place at the time:

(a) To protect himself from attack, or

(b) To prevent the disposal or concealment of any things particularly described in the
warrant.

However, this statute doesn't exactly mean what it says. State v. Lambert, 238 Kan. 444,
450, 710 P.2d 693 (1985). "Under proper circumstances the police may search a nonresident
visitor or his belongings in the course of executing a warrant for a premises search. These
circumstances include: where the individual consents to being searched, where the item is in
plain view on the person or in his possession, where there has been a valid arrest and where there
is probable cause to search plus exigent circumstances. A search may also be conducted under
the Terry exception, which allows a stop and frisk where there is a reasonable belief that the
person is armed and dangerous."

While police can detain persons on the premises, require them to identify themselves, and
compel them to stay until the officers' search is complete, Michigan v. Summers, 452 U.S. 692
(1981), officers may only search the persons and their belongings under the circumstances
described above.

State v. Horn, 15 Kan. App. 2d 365 (rev. denied 248 Kan. 998 [1991]). Police obtained a
search warrant authorizing search of premises and "all persons present." Officers announced
their presence, heard "scurrying" inside, broke down a door and saw people running to the rear
of the house. Money and drugs were in plain view. Horn was caught, a search of his person
produced cash, and he was convicted of attempted possession of cocaine. Insofar as the warrant
authorized searching all persons present, it was unconstitutionally general because the affidavit
did not reflect that drug trafficking was the sole activity of the house; thus, police could not rely
on the warrant to search Horn. But the search was lawful under the exigent circumstances
exception to the warrant requirement. K.S.A. 22-2509 authorizes the search of persons present
during execution of search warrants to prevent the disposal/concealment of anything described in
the warrant; this warrant described drugs; police had probable cause the occupants had drugs;
and exigent circumstances justified the search. First, officers were executing a valid warrant; the
occupants of the premises fled when police announced their presence; and money and
paraphernalia were in plain view. These facts and facts supporting the search warrant affidavit
indicated that the premises housed past and present trafficking activity, and that the persons
present were traffickers. Thus, the Court said, the circumstances justified officers in believing
that the fleeing persons could have drugs: "Given that drugs are easily concealed and easily
disposed of, the police had reasonable cause after entering the residence to search everyone
running toward the back of the house."

State v. Vandiver, 19 Kan. App. 2d 786 (1994). An officer entered premises pursuant to a
narcotics search warrant. After making an immediate arrest, he found six persons playing video
games near a bag of marijuana; he also smelled burnt marijuana. The officer patted down the
persons and found a 35mm film canister in defendant's pants pocket. Despite admitting that it
did not resemble a weapon, the officer removed and opened the canister to see what it was; he
found marijuana inside and arrested defendant. The Court ruled that the canister search was
illegal; it was not justified by a warrant; defendant's mere presence near the marijuana did not
establish probable cause to support an arrest for possession, so the search could not be justified
as incident to arrest. Moreover, without probable cause, K.S.A. 22-2509(b), the statutory
authorization to search persons present at the scene of a search warrant execution when probable
cause and exigent circumstances, such as the need to prevent evidence from destruction, exists;
could not justify the canister search. Even had probable cause existed, no exigent circumstances
were present. There was no evidence supporting the notion that evidence might be destroyed; no
one fled, or attempted to flee, the premises, and no one tried to conceal or destroy anything. To
justify a search under K.S.A. 22-2509(b), there must be probable cause and some observable
circumstances, such as someone fleeing from police, or an individual acting in a suspicious or
furtive manner, in addition to reasonable police determinations that evidence will be destroyed
or concealed before a warrant can be obtained.

Vandiver would probably turn out different today, as long as the officer could believably
testify that it was immediately apparent to him, based on his training, education and experience,
that the pocket contained contraband. In State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998),
the Court held that officers can do a Terry search of a suspect's pockets if there is reasonable or
probable cause to believe the nature of the items located therein (usually drugs) is incriminating
and this incriminating nature is immediately apparent to the searching officer. Court will
consider the totality of the circumstances, including the officer's credibility, training, education
and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson,
508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of
the Kansas Bill of Rights differently.

4.Excessive Force in Execution of Warrant

State v. Tyler, 251 Kan. 616 (1992). In a case involving the killing of an undercover narcotics
officer during a raid, the defense claimed that officers used excessive force when they executed
their search warrant because they failed to "knock and announce" their identity and purpose.
The Court noted that federal statutory provisions subject federal officers to knock and announce
requirements, but those provisions don't apply to state officers. It ruled that Kansas has not
adopted a knock and announce rule, and that, in this case, the officers' failure to knock and
announce before entering the raided premises was reasonable. Only one officer was in uniform,
but the others were dressed in raid regalia and other clothing clearly identifying them as officers
as they entered. They also announced, again as they entered, who they were and their purpose
for being there. The officers also knew a bodyguard, who carried a hammer, would be at the
front door and that one person who had been previously seen at the raided premises was known
to carry a gun. The Court stated, in conclusion, "Law enforcement officers, especially in
narcotics cases, must weigh several factors when deciding how to execute a search warrant. For
example, delay could possibly lead to the destruction of evidence and increase the danger to the
officers. In this case, based upon the information available to the police prior to the execution of
the search warrant, we find the search was reasonable..."

State v. Beal, 26 Kan. App.2d 837, 994 P.2d 669 (2000). An arrest warrant not only allows
officers to search the house of the person named in the warrant, but also a detached garage if
officers have a reasonable basis for believing the person named in the warrant will be found
therein.

KBI Agents and Topeka Police Department officers were looking for James Jenkins, Jr., for
involvement in narcotics. An informant told officers that he had contacted Jenkins, Jr., at what
appeared to be an upstairs apartment at 1261 S.W. Clay. A KBI Agent witnessed Jenkins, Jr.
descend an external staircase from the second story at the address and conduct a crack cocaine
transaction with the informant. In January 1991 Jenkins, Jr. gave Topeka Police Department
officers 1261 S.W. Clay as his residential address. About a month later, the informant notified
officers that Jenkins Jr. and others took him to 1201 Lincoln where they robbed, beat and
interrogated him about "snitching." KBI, Agents obtained search warrants for 1201 Lincoln and
what they believed to be an upstairs apartment at 1261 S.W. Clay. KBI Agents and Topeka
Police Department officers executed the warrant at about 11:40 p.m. An unidentified member of
the Topeka Police Department threw a "flash bang" through the second story entrance while
another Topeka Police officer rammed open the second story door. Officers yelled, "Police
search warrant," upon entering. Jenkins Jr. was not there. Jenkins, Sr., his wife and their
daughters were. According to Mr. Jenkins' later testimony, Jenkins, Jr., had not lived in the
house for over a year.

There was no upstairs apartment at 1261 S.W. Clay, though the home did have outside stairs
that connected to one of three upstairs bedrooms. Officers secured the residence, including its
occupants, while they secured another search warrant covering the whole house.

While officers were entering, Jenkins Sr. was allegedly making his way up the home's
internal staircase and was knocked down the stairs by the flash bang. Jenkins Sr. said officers
were screaming and shooting, but no bullet holes were found. Jenkins Sr. ran to grab a shotgun
and was met at his downstairs bedroom entrance by an unidentified KBI agent and an
unidentified Topeka Police Department officer, who told him to drop the gun, get on the floor,
and put his hands behind his back. The officers handcuffed him face-down on the floor at
gunpoint. The officers allegedly held Jenkins Sr. at gunpoint, and inquired about his son,
Jenkins, Jr, asking where they could find him. After Jenkins Sr. had been on the floor for over
twenty minutes, KBI Agent Sabel came down the home's internal staircase and saw Jenkins Sr.
on the floor. Sabel examined a driver's license other officers had placed on Mr. Jenkins' back
and directed the officers to uncuff Jenkins Sr. and allow him to sit down. Ms. Jenkins told a
similar story and said officers ordered her on the floor, but she did not immediately obey the
officer because of a back injury. Finally, Mrs. Jenkins got face-down on the floor in a spread-eagle position as the officer advised. She was not handcuffed, but was held at gun point
prostrate on the floor for about twenty minutes. At one point, an unidentified officer walked up
to Mrs. Jenkins, pointed his gun at her head and said, "You tell me where your son is or I will
shoot." Other than to say he was a "real big guy ... kind of casually dressed," Mrs. Jenkins could
not identify this officer. While this was occurring, Mrs. Jenkins was growing more concerned
about her youngest daughter, who suffered from asthma and was having great difficulty
breathing. Mrs. Jenkins pleaded with the officers to let her get up and help her daughter with her
inhaler, but one of the officers told Mrs. Jenkins if she didn't shut her "goddamn mouth ... he was
going to slap the shit out of her." Some officers searched the downstairs of the residence before
arrival of the second search warrant. Damage caused to Mr. and Mrs. Jenkins' home during the
search and seizure included kicked-in doors, broken windows, broken furniture, damaged
ceilings and walls, burned carpeting, a broken glass piggy bank, a turned over aquarium, a
broken stereo, and a destroyed shoe. Jenkins both claimed mental pain and suffering.

Although the officers and their employers were granted summary judgment for various
reasons, the Tenth Circuit Court of Appeals was clearly concerned with the entry team's actions.

Concurring in the affirmance, Judge Henry stated:

I concur in the majority's legally precise disposition. I write separately only to
emphasize the apparent inappropriateness of the governmental action in this case, which
seems to push the envelope of "reasonableness" under the Fourth Amendment
dangerously far.

The defense of the Kansas Bureau of Investigation and the City of Topeka rests upon the
fact that neither Mr. nor Mrs. Jenkins could identify the officer or officers responsible for
the egregious conduct that occurred in their home in the middle of the night. The
defendants do a good job of pointing the finger at each other, and although this defense
is legally successful in this case, it leaves quite a lot to be desired from the standpoint of
the Fourth Amendment. Indeed, the district court also expressed its view that the Jenkins
"have testified to facts which might support a claim of excessive force against one or
more officers executing the search warrant." [Citation omitted]. I agree with the district
court's conclusion. The warrant, requested at 10:48 p.m. and executed at 12:30 a.m.
[Citation omitted], was served in a fashion that would have almost certainly been illegal
under federal statutory law. See 18 U.S.C. 3109 (requiring federal law enforcement
officers to announce their authority and purpose prior to breaking doors or windows in
the execution of a search warrant); United States v. Stewart, 867 F.2d 581 (10th Cir.
1989) (applying 18 U.S.C. § 3109 to similar facts).

. . .

The governmental interests served by this commando approach are not apparent.

. . .

These governmental interests do not outweigh Mr. and Mrs. Jenkins' Fourth Amendment
right to be free from flash bang, no-knock, 12:30 a.m., governmental searches of their
home. Noting that the standard of review requires this court to examine the factual
record in the light most favorable to Mr. and Mrs. Jenkins and extend to them all
reasonable factual inferences, the threatening language allegedly used by the police --
"You tell me where your son is or I will shoot." -- gives me further pause. [Citation
omitted].

. . .

Nevertheless, the majority opinion clearly states the law's requirements. I agree with the
district court that Mr. and Mrs. Jenkins have "not identified sufficient evidence or
pointed to any authority demonstrating that either Wood or Sabel may be liable for the
such [sic] acts." [Citation omitted]. Nor have they provided support for their claim that
the City of Topeka had a custom or policy of using excessive force in the execution of
search warrants. Courts cannot apportion § 1983 liability on a market share basis.

I believe the defendants would do well to reevaluate their policies (or lack thereof) --whoever makes them and whatever they are -- regarding the use of such tactics in the
execution of search warrants. [Citations omitted].

Jenkins, 81 F.3d at 996-998 (Henry, Circuit Judge, Concurring).

5.Defects in the Warrant Itself

State v. Cardenas, 26 Kan.App.2d 177, 980 P.2d 594 (1999). Search warrant which fails to list
any items of evidence or contraband to be seized, the warrant is a general search warrant and is
fatally defective.

6.Police Bringing Unnecessary Parties

Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed2d 818 (1999); and Hanlon v. Berger,
___ U.S. ___, 119 S.Ct. 1706, 143 L.Ed2d 978, (1999). Allowing a newspaper reporter and
photographer or other third parties not involved in warrant execution to accompany federal
marshals and county police officers into a home to serve a felony fugitive warrant, or to
accompany fish and wildlife officers while searching a 75,000 acre ranch for evidence of
poaching, violates the Fourth Amendment to the United States Constitution. Rights were not
clearly established in 1992 or 1993, so defendants were entitled to qualified immunity.